Telephone Tapping in India: Legal Provisions

 

In India, the tapping of individual’s telephone in "any public emergency, or in the interest of public safety”, is regulated by law. Phone tapping or wire-tapping refers to secret listening or/and recording of a telephone communication in order to get its content. It can only be done with permission from the authorities duly authorized by the government to give permission for the purpose. Both, the Central and the State Governments have the right to issue orders to tap phones of persons under suspicion.

When an investigating agency needs to record phone conversations the agency should seek permission to tap phone from the authorized officer before going ahead with it. On getting the permission to tap the calls, the agency can seek assistance from the telephone service provider to tap the phone being used by the suspect. The service provider should do what is necessary for tapping the phone as permissible under the law.

The orders for such phone tapping can be issued by the Home secretary of the government of India / the state government, initially for two months but renewable up to six months subsequently. The Section 5(2) of the Indian Telegraph Act, 1885 is that empowers the Government to issue order for the interception of telephone messages and the Section 419A of the Indian Telegraph Rules 1951 is that lays down its procedures. Any instance of phone tapping, without following the due procedure, is unconstitutional and punishable.

As well, the Section 69 of the Indian Technology (Amendment) Act, 2008 has expanded the powers to tap a phone from a computer network. It provides for the government or its duly authorized officer to permit tapping any information transmitted received or stored through any computer resource, as per the  Information Technology (Procedure And Safeguards For Interception, Monitoring And Decryption Of Information) Rules, 2009. Any intermediary who taps the information in contravention of the provisions is liable to be punished with imprisonment up to three years and a fine.

Unauthorized tapping is violation of the fundamental right to privacy. When anyone comes to know about unauthorized phone tapping he can lodge a complaint about it in the nearest Police Station. Under Section 26 (b) of the Indian Telegraphic Act, a person/company that taps the phone in an unauthorized manner is liable to be punished with 3 year’s imprisonment. The telephone service provider not cooperating in the legally authorized phone tapping is liable to be punished for seven year’s imprisonment.